FORMER TEXAS GOV. RICK PERRY GETS FREE PASS ON ABUSE OF POWER INDICTMENT
On February 24, 2013, the Texas Court of Appeals put an end to the tortured legal saga involving former Texas Gov. Rick Perry. The court dismissed the remaining count from a two-count indictment issued against him in 2014 by a grand jury. The first and most serious count was the “abuse of official capacity” charge found in Section 39.02 of the Texas Penal Code and the second was “coercion of a public servant” charge found in Section 36.03 of the Penal Code.
Perry’s journey through the state’s criminal justice system actually began on April 12, 2013 when Travis County District Attorney Rosemary Lehmberg was arrested for DWI in Austin. Seven days later the disgraced DA pleaded guilty to a Class A misdemeanor and was sentenced to 45 days in the county jail.
Gov. Perry saw a political opening.
Governor’s Office Feeling the Heat
His administration had been facing a “public integrity” crisis with the exposure of a number of sweetheart deals and old-fashioned political cronyism. As we said here in September 2014, the Perry administration gave “Banana Republic politics” a bad name.
Put simply, the governor did not like the stated-funded Public Integrity Unit (PIU) in the Travis County District Attorney’s Office. He, and most of his fellow Republicans, did not like the fact that the Travis County DA has the authority to investigate political corruption statewide or that they seemed to find it regularly.
But the real burr under the gun-toting, “wily” coyote-killing governor was that the PIU was created in the early 1980s by former Travis County DA Ronnie Earle who had been a thorn in the side of the state’s Republican Party with his investigations of former Republican House Speaker Tom DeLay and U.S. Senator Kay Bailey Hutchinson.
During his two-decade tenure, Earle prosecuted 19 elected officials on corruption charges, five of whom were Republican. The Republican Party had fought hard for years to remove the PIU from Earle’s control into the state Attorney General’s Office. That would have been a nice deal for Republicans like Perry—public corruption would then have been “investigated” by then AG Greg Abbott instead of DA Earle, and later Lehmberg.
Perry Threatens Veto if Prosecutor Doesn’t Resign
In June 2013, the Austin Statesman reported that Perry was threatening to veto funding for the PIU if Lehmberg did not resign because of her DWI conviction. The governor and other statewide Republicans were incensed that Lehmberg had not immediately resigned after the DWI arrest and the release of a jail video showing her acting like a drunken sailor.
At the time the state budget had $7.5 million allotted to fund the PIU for two more years.
And, of course, up the governor’s sleeve was the ace that if Lehmberg resigned, he could appoint a Republican to replace her. Perry had a history of making some fine appointments in the criminal justice system, like former Williamson County DA Ken Anderson to a judgeship and John Bradley as district attorney to replace Anderson. Both men fell into utter disgrace for their involvement in the conviction and wrongful imprisonment of Michael Morton.
As he stared out on Barry Goldwater’s great horizon, Rick Perry saw glorious visions of an end to investigations into Republican corruption with the resignation of Lehmberg—something he so callously but futilely tried to accomplish.
But even after Lehmberg chose not to resign, the governor knew he had the power to end funding for the PIU which effectively ended scores of cases then under investigation, especially investigations into irregularities in the way grants were awarded to the Austin-based Cancer Prevention and Research Institute of Texas (CPRIT), a Perry brain child.
Gov Vetoes Funding for Integrity Unit
Gov. Perry followed through on his threat to cut off funding for the Public Integrity Unit on June 14, 2013 by using his line-item veto power.
The veto decision triggered both political and public outrage. Responding to that outrage, the liberal watchdog group, Texans for Public Justice (TPJ), filed a criminal complaint less than two weeks later. The group’s director, Craig McDonald, told the Dallas Morning News that the governor did in fact veto PIU funding in order to shut down the CPRIT investigation and replace Lehmberg with his own Republican appointee.
The Travis County District Attorney’s Office and other Austin officials recused themselves from the case. The TPJ complaint was assigned to a senior San Antonio judge named Robert “Bert” Richardson, a Republican appointed to the bench by Perry.
Republican Judge Appoints Special Prosecutor
On August 19, 2013, Judge Richardson appointed prominent San Antonio attorney and former federal prosecutor Michael McCrum to investigate the TPJ complaint.
McCrum developed sufficient evidence to present the case to a grand jury.
In August 2014, a Travis County grand jury indicted Gov. Perry on the two counts mentioned above. Of course, the governor let out a Tarzan scream that the indictment was “politically motivated” handed down by a liberal grand jury in the notoriously liberal state capital of Austin.
In January 2015, Judge Richardson refused to dismiss the charges against Perry at the request of the governor’s high-powered defense team.
Republican Appellate Judges to the Rescue
The governor’s attorneys filed an appeal in the Third District Court of Appeals. That court in July 2015 threw out the “coercion of a public servant” account, but let stand the more serious “abuse of official capacity” charge. The three judge panel that handed down the ruling was all Republicans.
Perry’s defense team celebrated. They immediately asked the Texas Court of Criminal Appeals to throw out the remaining count and to uphold the appeals court decision to dismiss the coercion of a public servant count.
On February 24, 2016, the TCCA did just that. The Texas Lawyer reported that the court ruled that the abuse of official capacity charge “violated the Texas Constitution’s separation of powers provision to prosecute the exercise of a veto power under the abuse of official capacity statute. It determined there was a facial violation of the First Amendment to prosecute the threat of a veto under the coercion of a public servant statute.”
Perry reacted to the decision by calling McCrum a “rogue prosecutor” and saying the entire episode was a “political witch hunt.” He accused the prosecutor of trying to “criminalize” politics.
The facts undermine Perry’s “political witch hunt” claim.
No Witch Hunt
The TCCA decision was a 6-2 ruling. It was not unanimous. In fact, the same number of judges involved in the case from start to finish agreed that the most serious charge should go to a jury: the trial judge, three court of appeals judges, and two TCCA judges. Those six judges did not see a “political witch hunt”—they saw probable cause for a criminal indictment against the former governor who lost his presidency bid because of an “oops” memory.
McCrum responded to the ruling by calling it “horrendous.”
“This is a situation where the Republican court carved out a special ruling to get Perry off the hook,” McCrum was quoted by the media as saying. “It changes law for past decades and offers no laws for future courts to follow. That is, from what I understand a special ruling tailor-made for Rick Perry.”
Craig McDonald was just as blunt: “A highly partisan court has handed Rick Perry a gift. This decision is based on who Perry is rather than what he did.”
Justice Favors the Rich and Powerful
There was a sufficient legal basis to let this case be tried by a jury. The TCCA ruling creates the “ugly” perception that justice comes only to those with the social stature and financial means necessary to secure it.
That perception does more damage to our criminal justice system than the reality of trial would have done.